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Allahabad High Court sets aside Kanpur court order under UP Urban Building Act, says no vacancy in case tenants residing in house

The Allahabad High Court while allowing the petition observed that Section 12 of the Uttar Pradesh Urban Building (Regulation of Letting, Rent and Eviction) Act, 1972 is clear that in case, tenants or his family members, have taken a residence, not being temporary, deemed vacancy shall be treated.

A Single Bench of Justice Neeraj Tiwari passed this order while hearing a petition filed by Smt Prema Devi.

The petition has been filed challenging the order dated 23.01.2019 passed by the Additional District and Sessions Judge, Kanpur Nagar.

The facts of the case are that a release application was filed, which vacancy order dated 10.03.2010 has been passed and thereafter, release order dated 08.06.2011 has also been passed. Against the said orders, respondent-defendant had filed Rent Revision, which was allowed vide order dated 23.01.2019.

Counsel for the petitioner submitted that impugned order is bad on two grounds. Firstly, without reversing the finding of Rent Control and Regulatory Officer, revision has been allowed.

He next submitted that vacancy order and release order have been passed on the ground that petitioner is having her own house and residing in that also.

He pointed out that Suit is pending between respondent-defendant and his sister in which he has filed written statement on oath with specific averment that he is living as sole owner in the said House.

A vacancy order has been passed relying upon the admission made by the respondent defendant in the said suit, but without reversing this finding, impugned order has been passed.

Once, it is admitted in proceeding pending before another Court about the ownership of house as well as residence cannot be ignored by the Revisional Court without giving any specific finding upon that.

Secondly, in the affidavit filed along with the petition, petitioner has taken specific plea that respondent-defendant is residing in House. This fact has also been admitted in the counter affidavit filed before the Court, but without considering the same, impugned order has been passed.

He further submitted that remand order cannot be passed in routine manner except if there is exceptional circumstances to pass such order.

Ashish Kumar, counsel for the respondents defendants (tenant) vehemently opposed and submitted that Section 12(3) of UP Act No 13 of 1972 provides that vacancy can only be declared in case alternative accommodation is vacant.

In this case, same is not vacant as there is dispute between the defendant and his sister upon which Court has passed the order of status quo, therefore, in light of Section 12(3), there is no illegality in the order.

He also submitted that in light of Section 101 of Indian Evidence Act, 1872, it is required on the part of plaintiff to establish his own case and any affidavit/ statement filed in another Court cannot be read as evidence against the defendant.

Counsel for the respondents further submitted that in light of Section 14 of U.P Act No 13 of 1972, defendant is statutory tenant, therefore, no proceeding may be initiated against him.

The Court noted that,

Basic fact of the case is undisputed that Original Suit is pending between the respondent-defendant and his sister in which he has filed a written statement on oath with specific averment that he is living as sole owner in the said House.

Now the question before the Court is what would be the sanctity of statement given by the respondent-defendant in Original Suit on oath and applicability of Section 12 (3) of U.P Act 13 of 1972.

The language of Section 12 of U.P Act 13 of 1972 is very much clear that in case, tenants or his family members, have taken a residence, not being temporary, deemed vacancy shall be treated.

The Court observed that,

Argument of the counsel for the respondents-defendants (tenant) about the applicability of Section 12(3) of U.P Act No13 of 1972 cannot be accepted as there is no dispute on the point that written statement filed in Original Suit, it is admitted that respondents- defendants (tenant) is residing in House in the capacity of owner. In light of judgment given by Apex Court as well as the Court, he cannot take a different stand and be permitted for approbate and reprobate. Therefore, the Court is of the view that once, written statement has been filed by the tenant in Original Suit, it has to be treated as valid evidence and deemed vacancy has to be treated.

In this case, this defense is not available. Once it is held that tenant is having his own residence in light of Section 12(3) of U.P Act No 13 of 1972, judgment of Gopal Singh (Supra) is of no use in the matter only for the reasons that in the said case, facts are entirely different and in written statement, there are two factual averments contradictory to each other.

Counsel for the respondents made submission about the applicability of Section 14 of U.P Act No 13 of 1972 and as per the said section, defendant is statutory tenant, therefore, no proceeding can be initiated against him. This argument can also not be accepted for the very simple reason that once, in light of Section 12(3) of U.P Act No 13 of 1972, respondents- defendants (tenant) had occupied permanent accommodation, there is no occasion to consider the applicability of Section 14 of U.P Act No 13 of 1972.

“So far as the judgment of Chetar Sen Jain (Supra) is concerned, in that case, facts are entirely different as the issue was related to before the commencement of U.P Act No 13 of 1972 and also in part, tenancy was admitted. In that case, the earlier tenant was residing at the place in dispute and thereafter vacated the same, but along with new oral agreement, he had retained the accommodation in question for godown purpose. Therefore, the Court in light of new enactment i.e U.P Act No 13 of 1972 had decided the case in favour of the tenant.

The Revisional Court while remanding the matter before the Regulatory Authority, has not given any finding as to why admission made in Original by respondents-defendants (tenant) about having permanent accommodation cannot be accepted. Therefore, revisional order is bad and cannot be sustained. If the Revisional Court is of the view that the affidavit given in Original Suit cannot be accepted, there must have been specific finding to this effect along with reasons, which is missing in the impugned order.

Therefore, in light of Section 12(3) of U.P Act No 13 of 1972 as well as law laid down by the Apex Court and the Court, I am of the firm view that any affidavit given before any Court of law be read as conclusive evidence in subsequent proceeding before any Court of law, if related to that controversy.

In case, it is admitted by the respondents-defendants (tenant) in Original Suit that he is having permanent alternative accommodation, therefore, no case is made out to quash the order of the Regulatory Authority and remand the matter for fresh consideration”, the Court further observed while allowing the petition.

“Therefore, in light of facts as well as law discussed herein above, impugned order dated 23.01.2019 passed by the Additional District and Sessions Judge, Kanpur Nagar is bad in law and is hereby set aside”, the Court ordered.

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